Tuesday, February 21, 2017

America’s workers won when Donald Trump's first choice for
Secretary of Labor Andrew Puzder recently withdrew his nomination, after it appeared
unlikely that Puzder could get even 50 votes in the Republican-controlled
Senate. Puzder, the CEO of Carl's, Jr. and Hardee's fast food restaurants, had
the kind of baggage that would have sunk any nominee in a previous
administration: his ex-wife had stated on Oprah that Puzder abused her,[1]
Puzder employed an undocumented housekeeper and failed to pay taxes until after
his nomination, and Puzder had long defended his restaurant chains’
hyper-sexualized ads featuring swimsuit models drooling over burgers.

More to the point, though, Carl's, Jr. and Hardee's
restaurants have a long record of wage violations and workplace sexual
harassment, and Puzder is a committed opponent of a federal minimum wage
increase from the current, unlivable rate of $7.25 per hour. Puzder's support for moderate immigration reform -- at odds with the Trump Administration -- seemed
informed more by a desire to increase the supply of cheaper, exploitable labor rather
than any humanitarian aims. In short, putting Puzder in charge of the
Department of Labor would have been an affront to America’s working families,
more like a charter for a new Department against Labor.

Puzder’s withdrawal is also an
encouraging development because it shows that at least some of the old rules
still apply to Trump, and, further, shows some cracks forming in Senate
Republicans’ support for the Administration and its nominees, regardless of
their qualifications (or lack thereof). Reportedly, Senators Collins (Maine)
and Murkowski (Alaska) expressed serious reservations after viewing the tape of
Puzder’s ex-wife on Oprah. Several
other Republican Senators were apparently more concerned about the undocumented
housekeeper than Puzder’s alleged spousal abuse. Regardless, the signals from certain Senate Republicans (and a united Democratic party) as to Puzder’s
disqualifying biography evoke a return to previous norms concerning suitability
for high public office.

Trump announced his replacement
nominee Alexander Acosta the very next day at the start of a 77-minute press
conference that subsequently devolved into the President reacting defensively
and returning to his standard line, when confronted with his failings, of
berating the reporters who dared to question him.

Acosta is the current dean of
Florida International University Law School, served in the Civil Rights
Division at the Department of Justice during the George W. Bush Administration,
and served on the National Labor Relations Board. If confirmed, he would be the
only Hispanic-American in Trump’s cabinet.

Acosta has considerable
government experience, having been confirmed by the U.S. Senate three times,
and is clearly more qualified to run his assigned agency as compared to many of
Trump’s “tremendous” nominees (see Betsy
DeVos, Ben Carson, Rick Perry). Acosta has testified in the Senate against the
anti-Muslim discrimination, which seems to be a unifying theme among many of
Trump’s supporters.

Acosta’s tenure in the DOJ’s Civil Rights Division
during the Bush Administration is cause for concern, given the rampant
politicization of personnel decisions during his tenure. Acosta also has no
record protecting workers’ rights, though Trump had pretended during the
campaign that as President he would be a working-class champion. Still, Acosta
is the kind of nominee one could expect to see in any Republican
administration, rather than being just another of Trump's rich, white friends who is
patently unqualified for high government service.

The collapse of Puzder’s
nomination, shortly following the resignation of National Security Advisor
Michael Flynn, is another major setback for the chaotic Trump Administration,
and another victory for our resistance. The replacement nomination of Acosta, a
fairly conventional Republican pick who will likely be easily confirmed, shows
how much political capital Trump has already lost due to the proliferation of
scandal, incompetence, and mismanagement during Trump’s first month in office.

[1]
Puzder denies the abuse allegations, and his ex-wife has since recanted them.

Friday, February 10, 2017

Yesterday the Ninth Circuit protected the constitution
that is the basis for our country’s democracy against an administration that
seems to scoff at all constitutional limitations on its power. The Court rejected the administration's appeal of a
temporary restraining order (TRO) blocking Trump’s “Muslim Ban” Executive Order
(now restyled as a “travel ban” on residents from certain countries, which all just
happen to be majority-Muslim). The concise but eloquently written opinion is
here.

Most importantly, the Court thoroughly debunked the
administration’s astonishing assertion that the President has “unreviewable
authority” when it comes to immigration policy. (Slip Op. at 13). “There is no
precedent to support this claimed unreviewability, which runs contrary to the
fundamental structure of our constitutional democracy,” the Court held. The
Court cited the Supreme Court’s holding in Boumediene v. Bush, 553 U.S.
723, 765 (2008), that the “political branches” lack “the power to switch the
Constitution on or off at will.”

As the Ninth Circuit explained: “Within our system, it
is the role of the judiciary to interpret the law, a duty that will sometimes
require the ‘[r]esolution of litigation challenging the constitutional
authority of one of the three branches.’ Zivotofsky ex rel. Zivotofsky
v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462
U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.” Slip
Op. at 14. Both Chadha and Zadvydas v. Davis, 533 U.S. 678, 695
(2001) made clear that the “political branches” (congress and the executive)
have powers over immigration but that these are restricted by important
constitutional limitations – among others, those raised with the Muslim Ban,
including Due Process, the Establishment Clause, and the Equal Protection
Clause.

As the Ninth Circuit held, this is “no less true when
the challenged immigration action implicates national security concerns.” Slip.
Op. at 16, citing, inter alia, Ex Parte
Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of
war as well as in time of peace, to preserve unimpaired the constitutional
safeguards of civil liberty”). The Court wrote that the Government’s “authority
and expertise in [such] matters do not automatically trump [pun intended?] the
Court’s own obligation to secure the protection that the Constitution grants to
individuals,” even in times of war. Slip Op. at 17, citing, inter alia, Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).

Ultimately, the Court rightly held that “although courts owe
considerable deference to the President’s policy determinations with respect to
immigration and national security, it is beyond question that the federal
judiciary retains the authority to adjudicate constitutional challenges to
executive action.” Slip Op. at 18.

Adjudicating the Trump administration’s effort to
overturn the District Court in Seattle’s TRO against the Muslim Ban, the Ninth
Circuit focused on whether Trump is likely to succeed in overcoming Due Process
and other challenges to the Ban, finding that Trump’s Executive Order is likely
to be an unconstitutional loser. Slip Op. at 19. The administration asserted –
again, showing utter disregard for the foundational document of our republic –
that those affected by the Ban have no Due Process rights (i.e., notice and a hearing prior to restricting an individual’s
ability to travel). Slip Op. at 19-20. On the contrary, though, the Ninth
Circuit held that procedural protections of the Fifth Amendment’s Due Process
Clause “are not limited to citizens” but apply to all “persons” within the
United States, “including aliens” regardless of “whether their presence here is
lawful, unlawful, temporary, or permanent.” Slip Op. at 20, citing Zadvydas,
533 U.S. at 693.

The administration disingenuously pretended that the
TRO was moot because, several days after Trump issued the Muslim Ban Executive
Order, he had to backtrack with his White House counsel (McGahn) and issue “Authoritative
Guidance” saying it was not meant to apply to lawful permanent residents. The
Ninth Circuit did not buy it, stating, “[W]e cannot rely upon the Government’s
contention that the Executive Order no longer applies to lawful permanent
residents.” Slip Op. at 21. Aside from the fact that White House counsel has no
authority to contravene, interpret, or change an Executive Oder, “in light of
the Government’s shifting interpretations of the Executive Order, we cannot say
that the current interpretation by White House counsel, even if authoritative
and binding, will persist past the immediate stage of these proceedings.” Slip
Op. at 21. In other words – even if the Court had the ability to believe the
administration saying it would implement the Ban in some less offensive manner,
why would anyone believe anything this administration says?

The administration’s attorneys did not do themselves
any favors with their hollow arguments to the Ninth Circuit. For example, the
administration sought to argue that the states had no standing to challenge the
Muslim Ban, when, of course, the states are impacted in innumerable ways by the
Ban, e.g., that the Ban directly
impacted numerous public universities' students’ ability to pursue studies and
research, and harmed their families as well. Slip Op. at 12. As another
example, the administration argued that Kleindienst v. Mandel, 408 U.S.
753 (1972) precluded the Court from reviewing the President on an
immigration-related issue by misquoting the opinion, which related only to
denial of an individual visa, rather than a nationwide immigration policy. Slip
Op. at 15

Most significantly, as to the administration’s flimsy
arguments, the Ninth Circuit found:

-that “the Government has not demonstrated that the States
lack viable claims based on the due process rights of persons who will suffer
injuries to protected interests due to the Executive Order. Indeed, the
existence of such persons is obvious.” Slip Op. at 22-23.

- that the administration “submitted no evidence to rebut the
States’ argument that the district court’s order merely returned the nation
temporarily to the position it has occupied for many previous years….The
Government has pointed to no evidence that any alien from any of the countries
named in the Order has perpetrated a terrorist attack in the United States.”
Slip Op. at 26. And

- in providing no evidence to support its Muslim Ban, the
administration asserted that “’[u]nlike the President, courts do not have access
to classified information about the threat posed by terrorist organizations
operating in particular nations, the efforts of those organizations to
infiltrate the United States, or gaps in the vetting process.’ But the
Government may provide a court with classified information. Courts regularly
receive classified information under seal and maintain its confidentiality.
Regulations and rules have long been in place for that.” Slip Op. at 27 n. 8.

The Court rested on the likely violation of Due Process so did
not need to decide on the likely outcome with respect to the Muslim Ban’s
unlawful preference for some religions over others or violations of Muslims’
constitutional rights. Slip Op. at 26. However, significantly, the Ninth
Circuit did note “evidence of numerous statements by the President about his
intent to implement a ‘Muslim ban’ as well as evidence [the plaintiff states] claim suggests that
the Executive Order was intended to be that ban,” and held that “evidence of
purpose beyond the face of the challenged law may be considered in evaluating
Establishment and Equal Protection Clause claims.” Slip Op. at 25. In other
words, when the challenged Ban is fully and finally considered, the
administration will not be given a free pass on its new spin on the Ban (that
it is not a “Muslim Ban”). Also see Saturday Night Live’s spoof on the
administration running away from the “Muslim Ban” here.

Despite its understandable decision not to confront yet
the obvious religious discrimination perpetrated by Trump’s Muslim Ban, the
Ninth Circuit did not ignore the human impact of the unlawful Executive Order.
As the Court explained, “When the Executive Order was in effect, the States
contend that the travel prohibitions harmed the States’ university employees
and students, separated families, and stranded the States’ residents abroad.
These are substantial injuries and even irreparable harms.” Slip Op. at 28.

Ultimately, the Ninth Circuit’s decision has preserved
our integrity as a nation and stands as a bulwark in defense of the
constitution. Because of the Ninth Circuit’s decision, we can look ourselves in
the mirror as Americans and not feel like a nation of bigots and hypocrites.
Let us pray that more courts have the courage to follow the Ninth Circuit’s
lead in the days, months, and years ahead, facing down this administration's march toward tyranny.